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Jurists attending last weekend’s retired judges conference in Monterey were walking on eggshells, fearful of the slightest interaction with representatives of alternative dispute resolution providers. Their worries stemmed from a December state appellate ruling that said judges could be disqualified from an ADR case — and their decisions in that case over the last two years voided — if they had discussed employment with a mediation firm. The decision — Hartford Casualty Insurance v. Superior Court (C3 Entertainment), 04 C.D.O.S. 11279 — was the talk of the weekend gathering. “Everybody was on guard,” Stanley Bissey, executive director of the California Judges Association, said, “and was told to be aware there would be ADR providers there and, given Hartford, everyone should act accordingly.” On Wednesday, Bissey and the state’s judges breathed a sigh of relief when the California Supreme Court unanimously granted review of Hartford. No litigants had sought review, but the CJA had requested either depublication or review on the court’s own motion. Thomas Hollenhorst, a justice on Riverside’s Fourth District Court of Appeal and chairman of the CJA’s ethics committee, expressed relief at the court’s action and called Hartford a “major problem.” “It has the potential of knocking a lot of seasoned judges off the calendars,” he said Wednesday, “and judges who have already had discussions have the potential of having to vacate things they have done.” Hartford was authored by Justice Orville Armstrong of Los Angeles’ Second District. In his 10-page decision, issued Dec. 22, he ruled that Code of Civil Procedure � 170.1(a)(8) requires judges to disqualify themselves if a case involves ADR issues and they have discussed working for a provider as a neutral arbitrator. Armstrong also held that decisions made by a disqualified judge in a particular ADR case within the previous two years are null and void. Justices Paul Turner and Richard Mosk concurred. In his plea to the high court, CJA legislative advocate Mike Belote, of Sacramento’s California Advocates Inc., argued that Hartford was an unwarranted broad interpretation. “It may result in the wholesale disqualification of large numbers of judges,” he wrote. “It will likely result in the disqualification of most assigned judges, almost all of whom have likely been approached by an alternative dispute resolution company following their retirement.” CJA’s request was supported by Frederick Bennett III, counsel for the Los Angeles County Superior Court. Lawyers for Hartford Casualty Insurance Co. opposed the move, saying the appeal court’s ruling was “essential to the orderly and uniform administration of California cases.” “Here, the court of appeal adhered to existing law with regard to vacating void or voidable orders entered by a disqualified judge,” Dean Herman, a partner in L.A.’s Michelman & Robinson, wrote. “Any other rule would seriously undermine the public’s trust in the integrity of courts.” He noted that the same rule has been applied to the appellate courts through Canon 3E(5)(h) of the state’s Code of Judicial Ethics. Justice Hollenhorst said he thought the Second District was correct in ruling that a discussion about employment could lead to disqualification. “But the question is: What is a discussion?” he said. “Is it, ‘Are you interested? No.’ That’s not a discussion. Leaving the door open is a discussion because there is the possibility of employment down the road. A simple ‘no’ ends the inquiry.” Hollenhorst was more concerned about Hartford‘s holding that judges who fear potential disqualification could seek waivers from the opposing parties. The problem with that, he said, is that new parties frequently join a suit after it has commenced, and might choose not to waive the potential conflict. “It really encourages judge shopping,” Hollenhorst said. Until the Supreme Court acts, he said, judges are being encouraged to be “awfully careful.” “In most courthouses,” he said, “ADR people are cruising the hallways, and it’s easy to step into a situation where you could run into trouble down the road.” On Wednesday, Herman said it was his personal opinion that California has excellent judges, “and I believe the Bar is willing to rely on their good faith in determining whether a disqualifying discussion took place.” Drew Pomerance, a partner in Woodland Hills’ Roxborough, Pomerance & Nye who represents C3 Entertainment Inc., couldn’t be reached for comment.

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